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Family Law Blog: Family mediation a cheap alternative to court

Friday December 3, 2010 at 2:31pm

I blogged a few weeks ago about a wonderful resource from Cafcass called the Separated Parents Information Programme. This programme and its accompanying brochure is a mine of information on a range of issues, mostly but not exclusively related to children and how they are affected by separation.

Among the many topics covered is that of family mediation and whether or not it is a viable alternative to court. I thought it was a good issue to pick up on bearing in mind the Family Justice Review at the moment and the likelihood that legal aid for divorce cases will be severely curtailed, if not got rid of all together. This “clampdown” on legal aid will save the public purse around £300 million a year, according to reports, across divorce, employment issues, medical malpractice, and some personal injury and consumer cases.

Family mediation helps parents talk to each other in a structured way and reach agreement on issues, including where appropriate those affecting the children. This can help cut the amount of time they need to spend in court, cutting the cost of the divorce process and, probably, the time overall to reach an agreement.

It can be a more constructive way of reaching agreement. Parties can have appropriate representation who can help steer the discussion and create a more progressive environment rather than a combative one.

Mediation employs a qualified mediator to move things forward, something that might not happen in a court environment.

It's claimed it can:

  • Help focus on finding constructive solutions 
  • Improve parents’ communication skills 
  • Bring in an impartial advisor to reach agreement 
  • Aid parents in planning how to bring up their children.

Seeing an ex across a court room and then trying to reach an adult solution about access to the children, for instance, can be a recipe for disaster. Being put in such a cauldron, perhaps with the other party having an over-zealous legal advisor, can lead to accusations flying backward and forward and no way forward found. Family mediation can promote discussion in a more tranquil atmosphere.

With the changes in legal aid imminent, will family mediation or divorce insurance be the most cost effective ways to move forward for couples going through divorce or separation?

Andrew Woolley
Divorce Solicitor

Read more: Family mediation in divorce

» Categories: Children and divorce, Family law, Mediation, Family Mediation

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13 Comments

Lyn Bastow | December 7, 2010, 7:15pm
Mediation is another form of negotiation... some people are better at negotiation than others... some people are more reasonable then others... sometimes mediation works... I feel it is being heralded with as much expectation as Obama's Presidency. That said I find mediation more satisfying generally... a bit like a job well done. It would be interesting if their were some statistics to show how many Mediated Agreements are actually converted to Consent Orders ...
Lisa Gray | December 9, 2010, 12:07am
The problem I see with family mediation (in Utah, USA) is that it assumes the divorcing couple can communicate and negotiate a reasonable solution--if the couple could do that, they most likely wouldn't be divorcing. Of course there are a small percentage that can, but far too often mediation ends up being ineffective because at least one of the parties is unreasonable. In my area, mediation is required but it most often occurs after the litigation is underway (and litigation naturally tends to heighten the animosity and discourage compromise). The answer is not necessarily mediating first because that can cause serious legal problems if the couple isn't advised on the legal issues in advance. The fairly new concept of "collaborative law" is starting to be developed (where each party and their attorneys agree to forego the adversarial litigation process while pursuing a negotiated settlement and if the process fails, the parties can start over in litigation with different attorneys). I am anxious to see how this concept works and whether it succeeds. I also want to explore the use of binding arbitration in divorce. I can see some potential problems that courts may reject, but I'd like to explore whether arbitration could substantially reduce the time and cost involved. Has anyone had experience with either collaborative law in divorce or binding arbitration?...
Andrew Woolley | March 8, 2011, 11:56am
It's interesting to reread these comments in the light of new rules on Mediation which come into effect in England and Wales from 6th April 2011. Mediation is a great tool, but only one of many. It needs to be used in the right circumstances, be undertaken for the right reasons and with the right approach by both parties. And it must be conducted by a suitably trained and qualified mediator. Under these conditions some really great agreements can be achieved and of course cases prevented from going to Court....
H Clark | June 28, 2011, 3:21pm
my daughter had a lot of problems with her b/f parent and step-parent and his family calling her one eyed monster and lots of other things too, his mum kicked him out of the house last june big time and she said she didnt want anything to do with my daughter well over 6mths the b/f got slow into his mums home and than brought my daughter back into it now she wont let us see my grandson or his aunts and uncles too, they have planned things from the time she was having him upto his birth even took her away to have the baby in a different county so we couldnt be there for her and the baby his family have been so selfish with in all this if they fall out we are the ones to pick up the pieces and yes and sadly she goes back to them to be emotionally abused my them she has problems and they know this she needs a lot of help and to see what they are doing to her and her baby all we would like his to see her and the baby even so we can have our grandson and nephew for the weekends would be really nice can you help in any way please.... ...
Andrew Woolley | June 28, 2011, 4:15pm
Dear "H": I am so very sorry to see the upset you have had to put up with. From what you say I don't doubt a Court would want to arrange for you to have contact. But Court is normally a last resort. I wonder if they'd agree to go to a form of mediation as I do think the communication needs to improve greatly if future contact is to work well. After all, as you clearly accept, the interests of the child are the most important issue--or they should be....
Pamela | January 18, 2012, 2:50pm
Special Guardianship Orders ARE NOT WORTH THE PAPER THEY ARE WRITTEN ON...
Andrew Woolley | January 19, 2012, 2:11am
Pamela I suspect from what you've said that you have had a bad experience with a SGO? I have found them to be useful if properly dealt with. I am so sorry if you have not. If you contact me I'll see if I can help. ...
John | January 30, 2012, 4:51pm
From my personal experience, if you're a bloke and your ex is intent on going to court to fleece you.don't bother offering mediation. An offer of mediation is more likley to provoke an allegation of domestic abuse from her/her solicitor and then you're immediately on the back foot and in more trouble. Refusal to go to mediation is not looked at well by courts, so to justify refusal, the doemstic abuse card is played which renders your offer of mediation null and void. Don't believe the "resolution" solicitor bull either, get yourself the best solicitor you can who's actually prepared to fight a man's corner. Sorry if this sounds bitter, just talking from experience. ...
Andrew Woolley | January 30, 2012, 6:51pm
John I'm sorry to see your experience. It's true to say that mediation does not suit all cases and certainly both people involved need to be committed to it. ...
John | January 31, 2012, 2:36pm
Andrew, it was my understanding that as of 6th April 2011, courts would have the power to have cases assessed for suitability of mediation. It seems wrong to me that one partner can thwart attempts of mediation by simply making false allegations of domestic abuse. In my case this resulted in an ex-parte non-molestation order being issued some time later simply on the back of a sworn affidavit by the applicant that contained yet more lies. In my humble opinion there's something seriously wrong with a legal system that allows such orders to be issued without a shred of hard evidence. Guilty until proven innocent comes to mind!!...
Andrew Woolley | January 31, 2012, 5:35pm
There is professional rules danger in my commenting too much on one case--so I'll be general! I think we'd all agree that using any sort of falsity to avoid mediation is entirely wrong. To give sworn evidence that is untrue is not only wrong it is a serious criminal offence. Initial ("ex-parte) orders are made pending a full hearing of the evidence to protect the person complaining of violence until that time. ...
John | February 6, 2012, 1:19pm
Andrew, not wishing to hog this board and divert attention from the subject of mediation; but I would like to give a "real" account/example of how an ex-parte order has worked in the "real" world. Order is served at 8pm on a Thursday evening, hearing is 10am Monday morning. No time to get legal advice and probably couldn't afford it anyway. Told by judge that order could be contested but it wasn't a "big hurdle" for the applicant to get over so I may well end up having to pay several thousand pounds fees on top of the 10 thousand I already owe..... it was pretty much a case of I wouldn't bother I was you...mind blowing!!! My ex claimed in her affidavit that I was known to the Police as an "agressive and violent man"... I have no convictions and have recently passsed an enhanced CRB. She also claimed I had sent a text within the last month wishing her a "slow and painful death"... totally untrue. A quick phone call to the police and a quick look at her phone will have proven these claims to be untrue. Instead the premise of guilty until proven innocent is adopted. Personaly I find the whole thing sickening, the system is so open to abuse it beggars belief. A quick search on the internet will show there's a huge amount of concern about these orders and the fact that false allegations of domestic abuse have become part of the "gamesmanship" of separation and divorce cases. Men in particluar need to be on their guard here, things can snowball pretty quickly against them if their not careful, and as in my case, an offer of mediation could be the start. ...
Andrew Woolley | February 17, 2012, 6:24pm
John That all sounds a really horrible experience. It is certainly true that both men and women need to be very wary when they receive serious allegations and expert, specialist legal advice is essential....

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